The fight over triple ta­laq has reached a turn­ing point, with the Supreme Court re­sum­ing ar­gu­ments about its con­sti­tu­tional va­lid­ity. As the Modi gov­ern­ment’s call to ban the Mus­lim cus­tom segues into cam­paign rhetoric, what loses ground is the larger que

India Today - - BIG STORY - By Da­mayanti Datta

“Ta­laq, ta­laq, ta­laq.” And Mur­taza hung up the phone, end­ing his 15-year mar­riage to Ishrat Ja­han, a mother of four. The em­broi­derist from West Ben­gal, now in Dubai, wanted a new life and a new wife. “Just be­cause we eat ap­ples, can’t we like other fruits?” Aj­mal Basheer What­sApped his ta­laq to his bride of 10 days in Ker­ala. Dowry or di­vorce? Syed Ashhar Ali Warsi of Mad­hya Pradesh used Speed Post to liq­ui­date his mar­riage to Afreen Rehman. Rizwan Ahmed of Ut­tar Pradesh sim­ply posted a let­ter to wife Sha­yara Bano, 37: “Ta­laq. Ta­laq. Ta­laq.” It’s a nor­mal story: just a few men among many, ex­er­cis­ing ‘rights’ be­stowed by the Mus­lim Per­sonal Law (Shariat) Ap­pli­ca­tion Act, 1937. But there’s a twist in the tale. In a groundswell of anger, Mus­lim women are com­ing for­ward. Burqas un­veiled, star­ing un­flinch­ingly into press cam­eras, nav­i­gat­ing the labyrinth of court pro­ce­dures, to chal­lenge the tra­di­tion that grants their hus­bands the in­stant, uni­lat­eral and ir­rev­o­ca­ble right to di­vorce them: the ta­laq-ul-bid­dat or triple ta­laq.

In the sum­mer of 2016, sev­eral women who had been treated with ca­sual dis­re­gard by their hus­bands sud­denly had to be taken very se­ri­ously in­deed. Their pe­ti­tions in the Supreme Court, along with the Naren­dra Modi gov­ern­ment’s clar­ion call to top­ple the cus­tom, caught the na­tion off-guard, trig­ger­ing a tense de­bate: about the con­di­tion of ‘hap­less Mus­lim women’, the le­gal sta­tus de­manded by them, the brash re­jec­tion by Mus­lim cler­ics, the real in­ter­pre­ta­tion of the law, the sce­nario in other Mus­lim na­tions, the misog­yny in­her­ent in the per­sonal laws of all com­mu­ni­ties, the pos­si­ble need to in­scribe a re­li­gion-neu­tral com­mon code (or the Uni­form Civil Code) in the statute books and, of course, the pol­i­tics of vote bank in view of the Ut­tar Pradesh as­sem­bly elec­tions. With the Supreme Court hav­ing re­sumed ar­gu­ments on the triple ta­laq cases from Jan­uary, the count­down has started.

“Just as Hin­dus com­mit­ting fe­male foeti­cide will have to go to jail, like­wise, what is the crime of my Mus­lim sis­ters that some­one says ‘ta­laq, ta­laq, ta­laq’ over the phone and her life is de­stroyed?” On Oc­to­ber 24 last year, when Prime Min­is­ter Modi sud­denly ex­panded the bound­aries of the de­bate on triple ta­laq dur­ing an elec­tion rally in Bun­delk­hand, the na­tion sat up. It was the sec­ond time he had spo­ken out on the is­sue since his Vi­jayadashami speech in Luc­know on Oc­to­ber 11. He alerted news chan­nels against turn­ing it “into an is­sue of Hindu ver­sus Mus­lim or BJP ver­sus oth­ers” and cau­tioned politi­cians against the “lust for vote bank”: “Daugh­ters, moth­ers, sis­ters should be pro­tected. One should not con­sider re­li­gion.”

The me­dia went into over­drive. Had Modi hinted at a move to­ward a uni­form civil code, a fix­ture in BJP man­i­festos since 1998? So­cial net­works lit up with ex­cited chat­ter: why has the PM jumped into the de­bate be­fore Ut­tar Pradesh goes to polls? Hash­tags started trend­ing: #OneNa­tionOneLaw. The All In­dia Mus­lim Per­sonal Law Board (AIMPLB) is­sued a vol­ley of protest that the PM had no right to in­ter­fere. “Those op­pos­ing uni­form civil code should go to Pak­istan,” re­torted Hindu hard­lin­ers. Union min­is­ters held press con­fer­ences on gen­der jus­tice, while their po­lit­i­cal op­po­nents ques­tioned their ‘in­ten­tion’ of im­pos­ing a ‘sin­gle ide­ol­ogy’ on all cit­i­zens. The Law Com­mis­sion of In­dia floated its ques­tion­naire, call­ing for pub­lic de­bate. The Supreme Court main­tained a sphinx-like si­lence, an­nounc­ing its in­ten­tion to set up a larger sev­en­judge bench: a sign of the up­com­ing storm over fun­da­men­tal ques­tions of law.

Pol­i­tics of jus­tice

But the na­tion is squirm­ing. As Ut­tar Pradesh heads to­wards polls, the triple ta­laq is­sue is get­ting sub­sumed within the cam­paign rhetoric. On Feb­ru­ary 5, Union min­is­ter Sm­riti Irani, on the cam­paign trail in Luc­know, de­manded that the Congress and the Sa­ma­jwadi Party clear their stand on triple ta­laq. “Women should be re­spected… I am say­ing it pub­licly that be it Akhileshji, Rahulji, Dim­pleji or Priyankaji… Will they give their opin­ion on triple ta­laq or will they hint that there is a dif­fer­ence be­tween the rights of Hindu and Mus­lim women?” A day later, Union law min­is­ter Ravi Shankar Prasad sim­i­larly threw a dare at the Sa­ma­jwadi Party, Congress and the Bahu­jan Sa­maj Party to make clear their stand on the con­tentious is­sue, adding that the Cen­tre would take “a ma­jor step” to ban triple ta­laq af­ter the elec­tions. The same day, Union ur­ban devel­op­ment min­is­ter M. Venka­iah Naidu said: “There is a stated

stand of the Bharatiya Janata Party from the be­gin­ning, and the gov­ern­ment will present its view when the mat­ter comes up be­fore the Supreme Court.”

What the na­tion faces now is a wor­ry­ing ques­tion: What’s be­hind the Modi gov­ern­ment’s de­ter­mi­na­tion to do away with triple ta­laq? Is it a le­gal ma­noeu­vre or po­lit­i­cal war­fare? For, the com­plex­ity of triple ta­laq and per­sonal laws goes far be­yond pol­i­tics. The Con­sti­tu­tion de­scribes In­dia as a ‘sov­er­eign, so­cial­ist, sec­u­lar, demo­cratic repub­lic’, yet the pri­vate lives of its cit­i­zens are gov­erned by dif­fer­ent laws, in­her­ently dis­crim­i­na­tory to women and out­liers within a com­mu­nity, ex­plains Upen­dra Baxi, pro­fes­sor of law, Warwick Univer­sity. “It has ex­posed a ba­sic dilemma which the na­tion must face one day,” he says. To some, the

gov­ern­ment is us­ing triple ta­laq to de­monise the Mus­lim com­mu­nity and build a po­lar­is­ing nar­ra­tive on the eve of the UP elec­tions. “In the heat of the de­bate, no­body asks Mr Modi what have you de­liv­ered,” says Shab­nam Hashmi, co-founder of ANHAD, a hu­man rights net­work. “Un­com­fort­able ques­tions get di­verted.” Per­sonal laws, she says, do not af­fect only Mus­lims; there are prob­lem­atic laws in ev­ery com­mu­nity. “If the gov­ern­ment is so both­ered about women, why not bring in laws against khap pan­chay­ats and hon­our killing?” she asks.

An eter­nal de­bate

To Flavia Agnes, fem­i­nist lawyer and di­rec­tor of Ma­jlis Le­gal Cen­tre, Mum­bai, it’s a de­bate that has been with In­dia since the 1930s. “Yes, per­sonal laws are pa­tri­ar­chal,” she says (see in­ter­view: ‘Merely get­ting rid of per­sonal laws

won’t re­form so­ci­ety’). “But you must re­alise that all per­sonal laws are not sim­i­larly af­fected. If you have a spe­cific in­jus­tice hap­pen­ing in your com­mu­nity, you can go to court and set that right.” Dur­ing the Con­stituent As­sem­bly de­bates, then law min­is­ter B.R. Ambed­kar and Prime Min­is­ter Jawa­har­lal Nehru had pro­posed a com­mon code. With the Hindu Right op­pos­ing it tooth and nail, it had led to Ambed­kar’s res­ig­na­tion. “The truth is that women’s rights are al­ways a pre­text,” says Agnes. For Ambed­kar, the point was to bring all Hin­dus into one fold; Modi’s agenda is to get back at the Mus­lim com­mu­nity, she says. “The irony is that Modi de­serted his own wife. He had no tears to shed for her, but he sud­denly has a lot of sym­pa­thy for Mus­lim women.”

A new mood has been pick­ing up at the Supreme Court for quite some time now. Up and down its mar­bled labyrinth, court­rooms are echo­ing with out­spo­ken ju­rists, vent­ing their frus­tra­tion at the surge in cases on con­fus­ing per­sonal laws and the Cen­tre’s in­ac­tion. In Oc­to­ber 2015, there was a stunned si­lence as Jus­tice Vikramjit Sen’s voice rum­bled through court­room 10 of the Supreme Court: “What is hap­pen­ing?” he thun­dered. “Why is this hap­pen­ing? There is to­tal con­fu­sion.” It was the third time in a year that the top judges had thrown up their hands in de­spair. Sen tossed a ques­tion at the so­lic­i­tor gen­eral: “What hap­pened to the uni­form civil code? Why don’t you frame it and im­ple­ment it?”

Within a few days, a bench of Jus­tices A.R. Dave and A.K. Goel re­quested the chief jus­tice of In­dia (CJI) to con­sti­tute a spe­cial bench in or­der to make Mus­lim per­sonal laws gen­der-equal, in line with the Con­sti­tu­tion. “Laws deal­ing with mar­riage and suc­ces­sion are not part of re­li­gion. The law has to change with time,” the bench said. Yet, in De­cem­ber 2015, CJI T.S. Thakur re­fused to en­ter­tain a PIL that asked for court in­ter­ven­tion to di­rect Par­lia­ment or the gov­ern­ment to en­act a uni­form civil code, call­ing it “a mat­ter for the leg­is­la­ture” and a com­mu­nity’s is­sue. “Let its women come for­ward to chal­lenge,” he said.

And it did hap­pen in 2016: Sha­yara Bano, af­ter 15 years of mar­riage, mul­ti­ple preg­nan­cies and forced abor­tions, be­came the first Mus­lim wo­man in In­dia to chal­lenge triple ta­laq. At the core of the de­bate is the ques­tion: Is the uni­form civil code an idea whose time has come? As the Con­sti­tu­tion, in Ar­ti­cle 44 of the Direc­tive Prin­ci­ples of State Pol­icy, states, “The State shall en­deav­our to se­cure for the cit­i­zens a uni­form civil code through­out the ter­ri­tory of In­dia.” The un­der­ly­ing as­sump­tion is that a uni­form civil code would cre­ate a sense of ‘In­di­an­ness’ and strengthen na­tional unity. “But it’s a goal, not a right,” Baxi points out. “It con­tains no mech­a­nism and pro­vides no timetable for en­force­ment.” Ar­ti­cle 44 is also silent on how long the state shall “en­deav­our”. Nearly eight decades have gone by since a uni­form civil code was first mooted. Isn’t that too long for the state to “en­deav­our” with­out any­thing to show for it? Or, as some say, is the time not ripe yet? Or is it time to amend the ar­ti­cle it­self and change its vague prom­ise into a time­bound sched­ule?

Out­rage from be­low

This is an ex­tra­or­di­nary mo­ment for or­di­nary peo­ple. For, the de­mand for change is com­ing from them. Over 50,000 sig­na­tures from Mus­lim women and men de­mand­ing a ban on the prac­tice of triple ta­laq have been sent to the prime min­is­ter. “Mus­lim per­sonal law has be­come the sole and ar­bi­trary priv­i­lege of a few cler­gies with vested in­ter­est,” says Zakia So­man, co-founder of the Bharatiya Mus­lim Mahila An­dolan (BMMA). “This sit­u­a­tion must change. They can­not for­ever ex­clude women.” A sur­vey (‘Seek­ing Jus­tice Within Fam­ily’, March 2015) of nearly 5,000 women by BMMA shows 59 per cent di­vorced Mus­lim women in the sam­ple were vic­tims of triple ta­laq and 92 per cent want it to be banned.

“I want jus­tice and to get on with my life,” says Sha­yara Bano. Rehman, who moved the Supreme Court in May 2016 to end “friv­o­lous triple ta­laqs”, calls it “wrong and un­fair”. Ishrat Ja­han, who has lost the roof over her head as well as her chil­dren to her hus­band, says: “I don’t ac­cept the ta­laq by phone. I want jus­tice. And I will fight to

There’s an in­tense de­mand for change. A pe­ti­tion with over 50,000 sig­na­tures from Mus­lim women and men de­mand­ing a ban on triple ta­laq has been sent to the PM

con­sti­tu­tional va­lid­ity of Sec­tion 10A(1) of the Di­vorce Act, which pre­scribes a min­i­mum two-year pe­riod of sepa­ra­tion for Chris­tian cou­ples be­fore they can file for di­vorce by mu­tual con­sent, whereas Hin­dus and Par­sis can file a di­vorce suit af­ter a year of liv­ing sep­a­rately. Be­tween May and Au­gust 2016, in two dif­fer­ent ver­dicts, the courts up­held the rights of women to en­ter and wor­ship at the Sabari­mala tem­ple in Ker­ala and the Haji Ali shrine in Mum­bai. And in De­cem­ber 2015, Su­jata Sharma, el­dest daugh­ter of a Delhi busi­ness­man, won the right of a wo­man to be the karta of the prop­erty in the Hindu Un­di­vided Fam­ily.

Parsi sis­ters Gool­rokh M. Gupta and Shi­raz Con­trac­tor Patodia have chal­lenged the ban on women of the com­mu­nity who marry out­side their re­li­gion to en­ter the fire tem­ple to par­tic­i­pate in the funeral rites of their par­ents and rel­a­tives. Mum­bai res­i­dent Rox­ann Sharma, who used to teach at the Los An­ge­les Com­mu­nity Col­lege, US, has been fight­ing the Hindu Mi­nor­ity and Guardian­ship (HMG) Act since 2012, when her hus­band ab­sconded af­ter forcibly tak­ing away their son. It worked in his favour for a while as the HMG Act makes the fa­ther the “nat­u­ral guardian” of a child. The Supreme Court granted Sharma in­terim cus­tody of her three-year-old son in Feb­ru­ary 2015, declar­ing the mother to be the “nat­u­ral guardian” if a child is less than five. “My case is a land­mark one, as it of­fers some medicine to a so­ci­ety dis­eased with misog­yny,” Sharma writes in her blog.

Charged with mak­ing sense of the na­tion’s per­sonal laws by the Union law min­istry, the Law Com­mis­sion of In­dia, on Oc­to­ber 7, 2016, brought out a ques­tion­naire with 16 ques­tions, call­ing all In­dian cit­i­zens to en­gage, de­bate and sug­gest mod­els and vari­a­tions of a sin­gle com­mon code by mid-Novem­ber. There are ques­tions on the topics the uni­form civil code should in­clude or ex­clude, whether or not the com­mon code should be op­tional, on triple ta­laq among Mus­lims, prop­erty rights of Hindu women, Chris­tian women’s right to equal­ity in di­vorce, in­ter-caste and in­ter-re­li­gion mar­riages, the com­pul­sory reg­is­tra­tion of mar­riage and so on. “We are invit­ing ev­ery In­dian to keep an open mind, read and re­spond to our ques­tions, un­der­stand your own coun­try, be­fore think­ing about the code,” says Jus­tice B.S. Chauhan, chair­man of the Law Com­mis­sion of In­dia. It’s a le­gal land­mine, though. “In­dia is a land of re­li­gions and it is not easy to change peo­ple’s re­li­gious be­liefs,” he says.

The Con­sti­tu­tion as­sures pro­tec­tion of the fun­da­men­tal rights of equal­ity be­fore law (Ar­ti­cle 14), the right to live with hu­man dig­nity (Ar­ti­cle 21), the free­dom to pro­fess, prac­tise and prop­a­gate re­li­gion (Ar­ti­cle 25). “Th­ese are

the lim­its within which the mod­ern In­dian state has been strug­gling to balance, ne­go­ti­ate and me­di­ate the claims of var­i­ous com­mu­ni­ties of faith and their laws,” says Jus­tice Chauhan. As his of­fice digs deep, the va­ri­ety, di­ver­sity and range of laws and judg­ments take them by sur­prise. Thus, they have come across a Bom­bay High Court judg­ment that gave Mus­lims the free­dom to opt for the 80-year-old Mus­lim Per­sonal Law (Shariat) Ap­pli­ca­tion Act, 1937, gov­ern­ing triple ta­laq and polygamy.

Our laws hold many such sur­prises: while In­dian males are li­able to be jailed for mar­ry­ing two women at the same time, in Gu­jarat just the prom­ise of ev­er­last­ing love (and a fi­nan­cial un­der­tak­ing) be­fore a mag­is­trate can keep one out of jail, thanks to the maitri karar (friend­ship) con­tract be­tween a man and a wo­man. The fam­ily laws in Goa recog­nise some­thing called “lim­ited polygamy” for Hin­dus. Polyandry is com­mon in Haryana and among var­i­ous com­mu­ni­ties in the North­east and else­where in the coun­try. Hindu per­sonal laws pro­hibit sago­tra vi­vaha (mar­riage within the clan), which has pro­voked the hon­our killing dik­tats of khap pan­chay­ats. It is ev­i­dent that dis­crim­i­na­tion to­wards women runs across re­li­gions. “All feu­dal laws are un­just,” says for­mer Supreme Court judge Jus­tice Markandey Katju. But as Agnes points out, the ob­ses­sion is solely with the Mus­lim com­mu­nity. “Peo­ple are too busy point­ing fin­gers at Mus­lims rather than both­er­ing about the rights of their own daugh­ters,” she says.

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